Principal Designer role

[B52s]

39 minutes ago, JSHarris said:

An excellent analysis and summary, Peter, and one that strengthens my view that there is a significant amount of scaremongering going on, to try and intimidate people into believing they have to spend more money with "experts" in order to build their own home.

 

 

Apologies are in order, my intentions were entirely honourable and not to mislead or promote scaremongering.

 

I totally agree.  With the benefit of hindsight I should not have posted this article without fully scrutinizing its content.  It is not appropriate given that the charges all relate to working practices and absolutely nothing to do with CDM principal contractor duties (as I had incorrectly thought).  The article came from a reliable source, however, a poetic licence appears to have been used by the journalist to sensationalise the report.

 

Is it best that I remove the entire post, or should I ask a moderator to do this for me?

 

 

Edited April 14, 2017 by B52s
correction

[PeterW]

Hi - I suggest its left as is - the discussion is a very valid one and one that keeps coming round as there is as with every legislation, a whole lot of grey between the black and the white !!

 

You posted it in good faith - that's all we can ask and thank you for the apology !

[Steptoe]

58 minutes ago, PeterW said:

 

So that's negligence and standard cause for  prosecution under HSAWA as the team were employees of the company - no get out on that one, its general HSAWA stuff.

 

 

So that confirms they were prosecuted under WAHR and not under CDM 2015 so its not a CDM 2015 prosecution at all. The actual notation on the prosecution outcome from the HSE was this :

 

Leyland SDM (LSDM) Limited has been fined after four workers fell more than three and a half metres whilst carrying a ventilation unit.

Westminster Magistrates Court heard how LSDM had been in the process of redeveloping a warehouse in Wembley. However, when four workers tried to move a ventilation unit into position, the working platform became overloaded and gave way. Neither the work at height nor the lifting operations were planned properly. Two of the four injured men suffered leg fractures, while a broken collar bone were among the other injuries caused by the incident.

 

A Health and Safety Executive (HSE) investigation found the company failed to manage the risks when working at height and carrying out the lifting operation. The company also failed to have the right level of trained personnel and supervision in place to carry out these tasks safely and effectively.

 

LSDM of Fourth Way, Wembley pleaded guilty to breaching Regulations 6 (3) of the Work at Height Regulations 2005 and Regulation 4 (1) of the Manual Handling Operations Regulations 1992 they have been fined £450,000 and ordered to pay costs of £1038.

 

Speaking after the hearing HSE inspector Jack Wilby said: “The safety failings by this company are severe and it is lucky that the injuries were not more severe. This incident highlights the importance of planning work, in this case both for lifting operations and working from height, to ensure it is carried out safely.”

 

I've managed to dig into the legislation that makes interesting reading as its not as clear as the HSE website makes out !! Below are clauses 5 & 7 which relate to this discussion, and a very interesting definition.... [Full Legislation is here : http://www.legislation.gov.uk/uksi/2015/51/introduction/made ]

 

Firstly ...

 

“domestic client” means a client for whom a project is being carried out which is not in the course or furtherance of a business of that client;

 

That defines self builders are as domestic clients unless they are building to sell.

 

So onto the PD and PC appointments....

 

Appointment of the principal designer and the principal contractor

5.—(1) Where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time, the client must appoint in writing—

(a)a designer with control over the pre-construction phase as principal designer; and

(b)a contractor as principal contractor.

(2) The appointments must be made as soon as is practicable, and, in any event, before the construction phase begins.

(3) If the client fails to appoint a principal designer, the client must fulfil the duties of the principal designer in regulation 11 and 12.

(4) If the client fails to appoint a principal contractor, the client must fulfil the duties of the principal contractor in regulations 12 to 14

 

Application to domestic clients

7.—(1) Where the client is a domestic client the duties in regulations 4(1) to (7) and 6 must be carried out by—

(a)the contractor for a project where there is only one contractor;

(b)the principal contractor for a project where there is more than one contractor; or

(c)the principal designer where there is a written agreement that the principal designer will fulfil those duties.

(2) If a domestic client fails to make the appointments required by regulation 5—

(a)the designer in control of the pre-construction phase of the project is the principal designer;

(b)the contractor in control of the construction phase of the project is the principal contractor.

(3) Regulation 5(3) and (4) does not apply to a domestic client.

 

So.... The architect is on the hook for the Principal Designer in law as regulation 5(3) does not apply to a domestic client and therefore if a domestic client does not appoint a principal designer then the architect has no choice if they undertook any work (ie design / planning ) as they are defaulted into that position in legislation.

 

The law does not allow you to divest yourself of a legal responsibility under statute, so unfortunately an architect cannot decline being PD as they are noted in the statute as taking that role.

 

 

 

Section 7 (b)

If the architect or whoever specifically defaults to not being the PC then it automatically becomes the role of the client, and , tbh, I'd be very surprised if any architect doesn't have this in their T&Cs 

So, its would still make the self builder the PC,

I really fail to understand why anyone that is contracting various trades on a site cannot see themselves as the Principle Contractor,

On the other hand, if you contract the works to a builder who then obtains the services of others, then yes, that would mitigate you of the PC responsibilities,

 

[PeterW]

2 minutes ago, Steptoe said:

 

Section 7 (b)

If the architect or whoever specifically defaults to not being the PC then it automatically becomes the role of the client, and , tbh, I'd be very surprised if any architect doesn't have this in their T&Cs 

So, its would still make the self builder the PC,

I really fail to understand why anyone that is contracting various trades on a site cannot see themselves as the Principle Contractor,

On the other hand, if you contract the works to a builder who then obtains the services of others, then yes, that would mitigate you of the PC responsibilities,

 

 

Legally - and that is the legislation above - a domestic client cannot be PC,  or PD unless they have designed from scratch their own house and done all of the design.

 

 

[ragg987]

The role of PC does not have to be static - with our build I shifted that role over time. First to the groundworks contractor, then timberframe and finally finishing builder (even though I employed a few of the finishing trades direct - e.g. plaster, paint, plumbing, electrics).

[B52s]

1 hour ago, PeterW said:

 

Legally - and that is the legislation above - a domestic client cannot be PC,  or PD unless they have designed from scratch their own house and done all of the design.

 

 

 

No, I don't think this is the correct interpretation of Section 7 (b).  Unfortunately CDM Guidance L153 is less than clear.

 

Section 7 (b) is actually referring to the transfer of the client's duties in relation to managing projects in regulations 4(1) to (7) and has nothing to do with the transfer of PD or PC duties.

[PeterW]

9 minutes ago, B52s said:

 

No, I don't think this is the correct interpretation of Section 7 (b).  Unfortunately CDM Guidance L153 is less than clear.

 

Section 7 (b) is actually referring to the transfer of the client's duties in relation to managing projects in regulations 4(1) to (7) and has nothing to do with the transfer of PD or PC duties.

 

Yes I agree ... however if you read the legislation and follow the 'thread of regulations' 7.1(b) states that [the client duties] pass to the Principal Contractor assuming  the  client appoints one.

 

In the event that the client doesn't appoint one, then 7.2(b) automatically  assigns that role to the construction phase contractor. Likewise, the Principal Designer role goes to the pre-construction phase designer by default under 7.2(a) in the event of a non-assignment. 

 

So for a self builder to end up with principal designer  they would have to  design the building without external professional input. 

 

Principal contractor is a very grey area - 7.2(b) potentially could transfer the liability to a self builder but for this definition :

 

“contractor” means any person (including a non-domestic client) who, in the course or furtherance of a business, carries out, manages or controls construction work;

 

Now as self builders are not acting in the course or furtherance of a business, they therefore cannot be classed as contractors by law [in fact this could be deemed a very good defence in court] 

 

I will try and pick through this in order tomorrow to highlight the stages relating to how a self builder is affected by the legislation and where the liabilities are incurred. 

[Steptoe]

By business does not have to mean ( in law) in the course of a business activity, it can also mean in the course of carrying out business, which in the case of a SC would be applicable.

I think this is a case of trying to avoid a legal obligation, 

Only an opinion though from the point of someone that runs a successful Ltd company, I'm sure a lot of others without that legal responsibility will try and find a way to shirk their legal responsibilities to try and save 0.05% from their house build.

 

[Alexphd1]

Is this waffle apply north of the border aswell? 

[PeterW]

6 hours ago, Alexphd1 said:

Is this waffle apply north of the border aswell? 

 

Yes it applies to the whole of Great Britain ...

 

6 hours ago, Steptoe said:

By business does not have to mean ( in law) in the course of a business activity, it can also mean in the course of carrying out business, which in the case of a SC would be applicable.

I think this is a case of trying to avoid a legal obligation, 

Only an opinion though from the point of someone that runs a successful Ltd company, I'm sure a lot of others without that legal responsibility will try and find a way to shirk their legal responsibilities to try and save 0.05% from their house build.

 

 

Business is usually defined in UK legislation and in this instance it is no exception :

 

“business” means a trade, business or other undertaking (whether for profit or not); 

 

So in this statutory instrument it would still indicate that a self builder is not liable as such and is still a domestic client by definition of the law. 

 

I don't think anyone is trying to avoid any applicable legal responsibility. There are still other pieces of legislation that continue to apply and can result in significant fines or prison sentences for breach.

 

What is being said in this case is that by definition, a self builder does not  capable of being classed as Principal Contractor under CDM2015. The only way this would be clarified is using a test prosecution in court by which the HSE would need to prove they were not a domestic client. Given the HSE workload and budget, and the relative impact of the judgement, it is highly unlikely to ever occur. 

 

 

[Jeremy Harris]

I can confirm that, beyond any doubt, the definition of "business", in law, is exactly as Peter has described.

 

Having read through the SIs (both CDM2007 and CDM2015) several times in the past week or so, my main observation is that CDM2015 is not very well worded.  It was clearly written without adequate thought being given to how it might impact on a domestic self-build client, but the conclusion I reached was the same as Peter's.  It is the reason I've been making the point that this particular legislation does not place an additional burden on the majority of self-builders, and even for those self-builders that are required to take on a role under CDM2015 (those that do their own design, for example) the responsibilities are no more onerous than applied before CDM2015 came along - in essence the liability remains the same. 

[Stones]

Can a self builder design a house without professional input?   One could argue I designed my house by coming up with the floor plan, but the technical design to turn that sketch into working drawings was done by others. To get a building warrant, input from a structural engineer is almost always going to be required (unless the self builder happens to have these skills him or herself).

[joe90]

14 minutes ago, Stones said:

Can a self builder design a house without professional input?   One could argue I designed my house by coming up with the floor plan, but the technical design to turn that sketch into working drawings was done by others. To get a building warrant, input from a structural engineer is almost always going to be required (unless the self builder happens to have these skills him or herself).

 

I designed our house and only got someone ( an architect) to put it on CAD and put in the specs to keep the building inspector happy. Because I would not pay for a structural engineer I didn't have a passive slab and copied the golcar house foundations which building control accepted. 

[B52s]

On 4/14/2017 at 23:46, PeterW said:

 

Yes I agree ... however if you read the legislation and follow the 'thread of regulations' 7.1(b) states that [the client duties] pass to the Principal Contractor assuming  the  client appoints one.

 

In the event that the client doesn't appoint one, then 7.2(b) automatically  assigns that role to the construction phase contractor. Likewise, the Principal Designer role goes to the pre-construction phase designer by default under 7.2(a) in the event of a non-assignment. 

 

So for a self builder to end up with principal designer  they would have to  design the building without external professional input. 

 

Principal contractor is a very grey area - 7.2(b) potentially could transfer the liability to a self builder but for this definition :

 

“contractor” means any person (including a non-domestic client) who, in the course or furtherance of a business, carries out, manages or controls construction work;

 

Now as self builders are not acting in the course or furtherance of a business, they therefore cannot be classed as contractors by law [in fact this could be deemed a very good defence in court] 

 

I will try and pick through this in order tomorrow to highlight the stages relating to how a self builder is affected by the legislation and where the liabilities are incurred. 

 

There are several ways a self-builder could end up as principal designer.  For example; if the architect was only engaged up to building warrant, which is common. Under 7.2 (a) The designer in control of the pre-construction phase of the project is the principal designer; which potentially could fall to the self-builder.

 

The self-builder could also end up as principal contractor on projects where more than one contractor will be engaged.  Under 7.2 (b) The contractor in control of the construction phase of the project is the principal contractor.

 

Where did the above definition of "contractor" come from as I don't believe this definition appears in CDM Guidance L153? 

 

CDM Guidance L153, confirms the following CDM duty holders: 

- Contractors are those who do the actual construction work and can be either an individual or a company.

- Principal contractors are contractors appointed by the client to coordinate the construction phase of a project where it involves more than one contractor. [Note: the principal contractor can also automatically become a duty holder as stated in 7.2 (b) in situations where a domestic client has not appointed one.]

 

[PeterW]

4 minutes ago, B52s said:

Where did the above definition of "contractor" come from as I don't believe this definition appears in CDM Guidance L153?

 

Straight from the legislation - the statutory instrument lists all definitions used. 

 

The CDM Guidance note seems slightly at odds with the actual legislation - not unusual but the SI does have all the terms in it 

[ToughButterCup]

I regard this thread as one of the most important on this discussion group. For all of us.

 

Mid way through the discussion I had a good old moan about the poor way in which relevant  information has been presented at National Level. Given my professional background, its time to put up or shut up.

I intend to spend a good chunk of time over the next few days re-presenting the content of this thread in a more easily digestible format.  Before I post it, I'd like to circulate the content to people who have posted in this thread to make sure I have represented their views accurately.

I will also have a go at presenting the core information in a simplified graphical or other format.

 

I'd particularly welcome constructive criticism from H+S Subject Matter Experts. If any of you read this, please PM me and I'll send you an an advanced copy  of our draft text, while keeping your H+S SME status confidential.

 

An important word on my status as Admin. The term Admin is sometimes confused with Expert. I am definitely not an expert in anything except perhaps in delivering complex content online. I am especially keen to make H+S accessible, simple and clear. Since  that's exactly what I did for a variety of subjects over many years in my professional career, and as there's a slight pause in our build, I thought I ought to just do it.

[B52s]

13 hours ago, B52s said:

 

There are several ways a self-builder could end up as principal designer.  For example; if the architect was only engaged up to building warrant, which is common. Under 7.2 (a) The designer in control of the pre-construction phase of the project is the principal designer; which potentially could fall to the self-builder.

 

The self-builder could also end up as principal contractor on projects where more than one contractor will be engaged.  Under 7.2 (b) The contractor in control of the construction phase of the project is the principal contractor.

 

 

NOTE: My comments above, in relation to 7.2 (a) and 7.2 (b), are only applicable if the self-builder is an organisation.

[divorcingjack]

Well, that escalated quickly! 

 

Thanks to everyone that put in such well-thought out and clear advice and opinions, it really has helped me (and I'm sure others) in a significant way prior to the start of our build.  @recoveringacademic, I look forward to reading your post, and thank you for taking the time to do it. 

 

After speaking to another CDM company today, they also mentioned that the principal contractor is defined as a "business" and therefore a self-builder such as myself cannot qualify for the role. Confusingly, in the general HSE site (not the legislation itself) it says that a contractor is defined as anyone who EMPLOYS a contractor, NOT that they have to be a business. 

 

We are planning on following the recommendations on here of maintaining a phased plan, undertaking reasonable risk assessments, providing PPE/site security/first aid/refreshment facilities, but ultimately making the contractors on site fully responsible for their own H&S through a induction sign-up sheet and their provision of a risk assessment before they come on site. 

 

So, this is a straightforward approach when only one contractor is on-site - MBC for example, but what about when there are multiple contractors e.g. first fix electrics, plumbing, joinery? Who is classed as PC in that scenario? 

 

 

[PeterW]

21 minutes ago, divorcingjack said:

Confusingly, in the general HSE site (not the legislation itself) it says that a contractor is defined as anyone who EMPLOYS a contractor, NOT that they have to be a business.

 

Yes its good isn't it...? However.... HSE do this as it allows them to prosecute directors etc of companies who may not themselves be contractors but have employees who are. The key word in this statement is EMPLOYS as it is the legal definition you are looking for. You do not ordinarily "employ" a contractor to build a house for you unless its entirely on a day rate under CIS, at which point you would become a business anyway so you're back to being (correctly) defined as principal contractor.

 

A lot of this got clarified in case law when IR35 was introduced as there is a very good distinction between an employee, a contractor and a service provider... but that is for another thread !!! 

[divorcingjack]

So, if I'm not employing sub-contractors (sparky, plumber, joiner etc), what am I doing? A domestic client isn't classed as an employer? 

 

This is an absolute minefield! Prefer trying to sort out the heating, and I'd rather have bowel surgery than do that at the minute. 

[PeterW]

A domestic client is not an employer ... are you using a main contractor..?

[divorcingjack]

No, this is where all the confusion came about initially. We are having MBC do the slab and frame and then we are subcontracting from there, so no-one really is suitable to be a PC as there isn't anyone (apart from us) that will be present throughout the build, which is why I thought we would be taking on the PC role. 

 

But, as we're not a business, apparently we can't do that, so it will go as default to the contractor in charge of the current phase. 

 

I think. 

[PeterW]

PC can change through the process.

 

What you need to understand is what you're asking is that the Contractors are responsible for their H&S and their obligations under the CDM regs 4 & 7 from memory.

 

So if you only have one contractor on site at any one time, then they are the the only and therefore principal contractor HOWEVER as discussed previously, whether CDM2015 is relevant to self build is questionable.

[Jeremy Harris]

It's best to think terms of liability, as really that's the key thing here, not what happens to be in a Statutory Instrument that is focussed on businesses, rather than a private individual.  I'd go so far as to say that if you focus on managing the liabilities safely, then you can pretty much ignore CDM (bearing in mind that we've had CDM in one form or another for over 20 years now).

 

Our build started with me contracting with a ground works company on the basis that they had complete control of the site and all works.  I was a domestic client, they were the principal (and only) contractor.  As such, our contract spelt out the breakdown of responsibilities for HSW&E, with some requirements coming direct from the local authority and some from a structural engineer.

 

When they completed work, they handed the site to me and I took out liability insurance (something I was advised not to do whilst the site was the responsibility of the ground works contractor).  A borehole company were contracted to drill a borehole to the specification provided by a hydrogeologist, and again I was a domestic client, but with responsibility for site security.

 

The house foundation and frame supplier (MBC) came on site next, and were the third principal contractor, in CDM-speak.  I was responsible for some welfare and environmental issues (toilets, hand washing, provision of skips) and was also responsible for ensuring that a competent scaffolding company was contracted to erect the scaffolding to the builder's requirements.  Again I was a domestic client.

 

The next main contractor on site was the roofing company, and again I was a domestic client, and provided them with the same services as the builder.

 

From then on I contracted with a number of small contractors, all on a similar basis, which was that they had responsibility for ensuring that they worked in a way that was safe, not me.

 

The main liability you have as a self builder is really making sure the site is reasonably safe and secure, with proper warning signs, plus having public liability insurance in place in the event that someone breaks in and hurts themself.  That risk is far and away the greatest one, in my view, but if you can show that you have taken all reasonable measures to mitigate it then it's extremely unlikely that you would be prosecuted.  There are well-proven ways to make sites secure, with officially recognised warning signage.  Generally, securely fitted hoardings or Heras fencing, with plenty of warning signs, making sure scaffold ladders are hard to climb out of hours (I chained planks to ours), plus keeping the site as clear of hazards as you can, is all you can reasonably be expected to do.

 

[divorcingjack]

Sounds good to me, @JSHarris, that was the plan before all this PD stuff started. Fair point about someone breaking in - we live in an area with a LOT of drunken students. The last thing we need is something to happen on a Friday night. 

 

Our main worry at the minute is keeping access to the site clear, we have a continual stream of very over-entitled people parking across our entrance. Does anyone know where you can buy those really annoying extra-sticky stickers that you can put on car windows? They are an absolute arse to get off.